Marriner v. . Mizzelle , 205 N.C. 204 ( 1933 )

This proceeding was begun by petition filed by the plaintiff with the clerk of the Superior Court of Chowan County, and was transferred by said clerk to the civil issue docket of said court for the trial of issues raised by the pleadings.

On the facts alleged in his petition, the plaintiff prayed for an order allowing him as guardian credit for certain sums of money which he had deposited as guardian in certain banks, and which had been lost by reason of the subsequent insolvency of said banks. He alleged that said loss was not due to any negligence on his part. This allegation was denied by the defendants, who were made parties to the proceeding on motion of the plaintiff.

The proceeding was heard on the motion of the defendants that the surety on the guardian bond of the plaintiff be made a party to the proceeding. The motion was denied. The defendants excepted and appealed to the Supreme Court. It does not appear from the pleadings in this proceeding that the surety on the bond filed by plaintiff as guardian is a necessary party to this proceeding. It is not alleged in the answer filed by the defendants that there has been a breach of the bond. At most the surety is only a proper party. The motion of the defendants that the surety be made a party was addressed to the discretion of the court. McIntosh N.C. Practice Procedure, page 185. For this reason, the refusal of the court to allow the motion is not reviewable by this Court. The appeal by the defendants is

Dismissed.